Week of April 2, 2010 [1]

Welcome to the Citizen Media Law Brief, a weekly newsletter highlighting recent blog posts, media law news, legal threat entries, and other new content on the Citizen Media Law Project's website. You are receiving this email because you have expressed interest in the CMLP or registered on our site, www.citmedialaw.org. If you do not wish to receive this newsletter, you can unsubscribe by following the link at the bottom of this email or by going to http://www.citmedialaw.org/newsletter/subscriptions.

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News from the Citizen Media Law Project...

On Friday April 9, 2010, the CMLP and Berkman Center's Cyberlaw Clinic [2] are hosting a conference at Harvard Law School to celebrate the launch of the Online Media Legal Network (OMLN) [3]. Entitled “Journalism’s Digital Transition: Unique Legal Challenges and Opportunities [4],” the program will bring together panels of academics, legal practitioners, and journalists. Topics include:

• Saving Journalism from Itself? Hot News, Copyright Fair Use and News Aggregation
• Building and Managing Online Communities — Anonymity, Defamation and Privacy, Oh My!
• The Future of Journalism: Law and Ethics in a Changing Media Ecosystem

We have a limited number of free and reduced-fee registrations for academics, students, and public interest attorneys. For more information or to register, please go to the conference website: http://www.omln.org/conference [4].

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The latest from the Citizen Media Law Project blog...

Robert Arcamona reports that Kansas has adopted the "if it looks like a duck" test for online journalism.
Kansas Shield Law Awaits Governor’s Signature: Ripe Fruit From a Bewildering Tree [5]

Justin Silverman wants to retain the right to watch the watchers.
Keeping 911 Recordings Public and Online [6]

Arthur Bright sees a glimmer of light from across the pond.
British Libel Reform: Finally to Be a Reality? [7]

Andrew Moshirnia [8] is shocked, SHOCKED to discover that ACTA may not be all sunshine and flowers.
Paving Hell: ACTA Encourages Oppression from Friend and Foe Alike [8]

Eric Robinson [9] reports that some courtroom Internet users are more equal than others.
Using the Internet During Trial: What About Judges? [9]

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Recent threats added to the CMLP database...

Scott P. v. Craigslist, Inc. [10]
Posted Mar. 30, 2010

Levitt v. Yelp! Inc. [11]
Posted Mar. 30, 2010

LaPausky v. Yelp! Inc. [12]
Posted Mar. 30, 2010

Palm Coast Travel v. Elliott [13]
Posted Mar. 30, 2010

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Other citizen media law news...

Science writer Simon Singh wins libel appeal after 'Orwellian nightmare'
The Guardian [14] - Thurs. 04/01/10

Study: 52 Percent of Bloggers Consider Themselves Journalists
TechCrunch [15] - Thurs. 04/01/10

Battle Brewing Over Blog Comments
Media Law [16] - Thurs. 04/01/10

Israeli Supreme Court Says There Is No Legal Way To Reveal Anonymous Commenters Online
Techdirt [17] - Thurs. 04/01/10

Technology Coalition Seeks Stronger Privacy Laws
New York Times [18] - Tues. 03/30/10

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The full(er) Brief...

"In an overwhelming vote of support, the Kansas Legislature Tuesday passed a media shield bill that, if signed by Governor Mark Parkinson (D), will protect reporters in most circumstances from having to disclose the identity of anonymous sources and other information obtained in the newsgathering process. The Kansas bill is both remarkably progressive for its time and offers reporters generous protection. In addition to defending traditional news organizations, the bill extends its shield to ‘online journal[s]' that are engaged in ‘the regular business of newsgathering and disseminating news or information to the public.' While a Kansas court will have to authoritatively define the term ‘online journal,' the bill seems to cover bloggers and other non-traditional journalists so long as they engage in ‘regular' journalism. This question, whether bloggers should be protected by shield laws, has provoked vigorous debate surrounding the proposed federal shield law. The Kansas bill offers protection based primarily on whether an individual engages in journalism, not whether he or she is a professional journalist. . . . While offering this broad protection, the bill also ensures that state prosecutors and civil litigants are able to obtain information from journalists when absolutely necessary. The bill sets out a three-part test that parties desiring information must meet. . . ."
Robert Arcamona, Kansas Shield Law Awaits Governor’s Signature: Ripe Fruit From a Bewildering Tree [5]

"When a grizzly bear mauled bicyclist Petra Davis two years ago in an Anchorage park, she called 911 from her cell phone, barely able to speak. . . . With the help of paramedics on the phone, [a fellow biker, Peter] Bassinger helped stabilize Davis until a rescue team arrived. The young biker survived and her story quickly made its rounds online and on television, including NBC's Today Show, during which she was heralded a hero. . . . Listening to Bassinger direct paramedics to his remote location while at the same time flagging down other bicyclists and tending to Davis's wounds is sensational—but that, unfortunately, is why the Alaska state legislature doesn't want the recording to be heard. A bill now being debated would make the broadcasting of 911 calls illegal, a measure to protect the privacy of victims and their families. . . . Alaska House Bill No. 415 allows the transcripts of such emergency calls to be disclosed, but prohibits the actual recordings from being broadcast on any medium. . . . There’s nothing reasonable, however, about Alaska Bill No. 415. Recordings are kept out of the public’s reach altogether and there is essentially a 'fee' when media outlets broadcast those recordings they do obtain. A bedrock First Amendment principle is that 'if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order,' and the Supreme Court has held in similar circumstances that imposing a publication ban on the media is 'too precipitous a means of advancing' the state's interest in protecting the privacy of victims. Florida Star v. B.J.F., 491 U.S. 524, 534-37 (1989). Alaska is considering a bill with an incredibly broad scope. That’s a heavy burden on speech for a law that isn’t likely to protect privacy interests anyway. With transcripts still being released, the information that may violate a person’s sense of privacy is still made public. . . ."
Justin Silverman, Keeping 911 Recordings Public and Online [6]

"The reform of British libel law has been something of a will o' the wisp in recent years. Every few months it seems, the issue jumps to the fore, either through international pressure, a judicial decision, or a domestic campaign. . . . But finally, it looks like Britain's legal heavy hitters are getting involved. Last week, British Justice Minister Jack Straw rolled out the Labour government's outline for a long-needed libel reform bill. . . . Previous pushes for libel reform have been largely by soft powers—non-governmental bodies and lower court judges who have tried to distinguish the cases that earned London its 'libel capital of the world' title. But Mr. Straw's statement indicates that Labour is finally throwing its weight behind libel reform. . . . A statutory confinement on 'publishing' is welcome—the idea that a website is 'published' every time it's downloaded is as ludicrous as saying a book is 'published' every time it's opened. And putting an end to libel tourism is huge-the British libel laws have produced some outrageous results. . . . And indeed, the 'public interest' defense is sorely needed, though the concept needs further fleshing out. Based on Straw's description, it doesn't seem quite the powerhouse that the First Amendment is, and it may be similar to the common law public interest defense found in the law of many U.S. states. . . . Still, at first blush, Straw's proposal holds promise. Hopefully, the parliamentarians can fulfill that promise. . . . "
Arthur Bright, British Libel Reform: Finally to Be a Reality? [7]

"The drafting of the Anti-Counterfeit Trade Agreement (ACTA) isn't going so well. The agreement, which at least hints at three strikes provisions and third-party criminal liability for IP infringement, was finally leaked in its entirety last week. Now it seems that the drafters are a little nervous that authoritarian regimes might use ACTA to suppress speech. Wow, ya think? But we do not need to look to our enemies to find atavistic Internet policies. In the last few weeks, two of our staunchest supporters (South Korea and Australia) have been added to the illustrious Enemies of the Internet list. If even our well-intentioned, democratic allies offend Internet freedom by way of the rule of law, can there be any doubt that repressive regimes will do the same? . . . To be fair, it seems that good intentions drive the repressive actions of our allies. . . . These nations enjoy the advantages of a politically engaged citizenry and functioning justice systems. If we are lucky, ACTA might only slightly exacerbate these disturbing trends of censorship. Do we doubt for even a second that ACTA will be a boon for oppressive regimes unencumbered by robust legal protections? Finally, dictators will have a legitimate and legal International agreement to frustrate, harass, and/or identify online dissenters. Perhaps ACTA is a job stimulus bill aimed at the world's torturers. . . ."
Andrew Moshirnia, Paving Hell: ACTA Encourages Oppression from Friend and Foe Alike [8]

"Over the past year, we've watched the courts struggle with Internet and social media use involving a variety of actors. . . . Recent developments from courts in New York and Ohio have brought a new courthouse player onto the scene: the judge. In February, the Second Circuit Court of Appeals issued an opinion upholding Judge Denny Chin's reliance on Internet research in deciding whether a convicted bank robber had violated his terms of supervised release. . . . The appeals court concluded that Judge Chin's Internet research was permissible under Federal Rule of Evidence 201 [which] allows judges to take ‘judicial notice' of a fact this is ‘not subject to reasonable dispute. . . .' Meanwhile, last week the Cleveland Plain Dealer revealed that a pseudonymous website user tied to the personal email account of Cuyahoga County Common Pleas Judge Shirley Strickland Saffold had posted more than 80 comments on the newspaper's website, including some in connection with coverage of cases pending before Judge Saffold. . . . Regardless of whether Judge Saffold actually posted the comments, a common issue is raised by both of these cases: should judges be held to the same standard of behavior as jurors, who are instructed not to use the Internet and other social media tools during trial, either to do research or to comment. . . ."'
Eric Robinson, Using the Internet During Trial: What About Judges? [9]

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